This article was originally published by the New York Daily News on Jan. 12, 2020. View the original post here

As part of this year’s state of the state agenda, Gov. Cuomo announced sweeping changes to the criminal laws governing intoxicated sex. He has not characterized these reforms as radical but as merely “closing a loophole” in the rape laws, to make it so that not only involuntarily but voluntarily intoxicated people are unable to consent to sexual activity.

Something similar happened in California in 2016 after the infamous case in which Stanford student-athlete Brock Turner was convicted of sexually assaulting his inebriated, incapacitated victim. Gov. Jerry Brown signed a law prescribing mandatory years in prison for sex with an intoxicated person to bring a “measure of parity” to California’s rape laws.

It is important to understand exactly what is at stake with this legal change. As it stands, the New York penal code makes it a crime to have sex with a person who is unconscious, “temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent,” or “physically unable to communicate unwillingness to an act.”

New York courts have applied these provisions when victims were passing in and out of consciousness or in the act of vomiting, but not when people were seriously intoxicated but able to communicate and understand what was going on. In short, sex is impermissible with an involuntarily intoxicated person or a person who is unconscious or physically incapacitated, due to intoxication or anything else.

This leaves out the person who is extremely voluntarily intoxicated, but not to a level of total unconsciousness or incapacity. The proposed reform, according to the governor’s office, will “close this loophole once and for all and clarify that a victim’s ability to consent is jeopardized whether they were voluntarily or involuntarily intoxicated.”

The first question this brings up is simple but intractable: How drunk is too drunk? If sex is a crime whenever a person had more than one drink, then a lot of today’s ordinary sex is rape. Some have suggested that a person is too drunk for sex whenever they would not have agreed to the sex if sober. But that standard would make the many alcohol-fueled liaisons that provoke morning guilt mutual rape. A “sober judgment” standard is especially problematic considering the social science that people, particularly young, nervous, and dare I say repressed, people indulge in intoxicants precisely to facilitate sex; it takes the edge off of these insecurity-producing, emotionally fraught encounters.

For the past several years the American Law Institute, a group of lawyers and scholars responsible for creating the Model Penal Code (which New York adopts in large part), has grappled with the intoxication issue. The existing Model Code, similar to New York law, criminalizes sex with an unconscious person and where the defendant has surreptitiously administered intoxicants for the purpose of inducing sex.

While this covers the rapist who seeks out unconscious people or clandestinely drugs vulnerable victims, the assailant who bides his time until a victim becomes helpless is left out. The latest draft of the revised Model Penal Code broadens the clandestine drugging situation to cover cases where the defendant did not administer the drugs but “knows” someone did. It also makes it a crime to have sex with a person who “is passing in and out of consciousness” or “lacks substantial capacity to communicate consent.” Although the latter could be interpreted broadly, the intent of the Model Penal Code revision is to require that the intoxicated victim be extremely close to total incapacity.

The California prohibition mentioned earlier makes it a serious felony to have sex with anyone who is “prevented from resisting by any intoxicating…substance,” even if consumed voluntarily. The prosecutor in the Brock Turner case advocated attaching a mandatory minimum to this law to close the loophole between the person who drugs another and one who “watches and waits” until a person voluntarily becomes incapacitated.

However, prohibiting sex with an intoxicated person, even a severely intoxicated person, does far more than close a loophole. First, these laws do not require the defendant to “watch and wait” or stalk the victim until they become helpless. The crime is complete whenever there is sex plus sufficient drunkenness, however those two conditions came about.

It also does not matter whether the intoxicated person affirmatively and enthusiastically expressed consent or even if they were an aggressive initiator of the sex.

In addition, like most states, New York does not allow “voluntary intoxication” as a defense to many sexual assault offenses. In turn, the defendant is not permitted to argue that their own drunkenness contributed to their belief that the other person was sober enough to have sex.

In short, the law presumes that people charged with a sexual offense have the capacity to make criminal decisions, even when they are completely obliterated, and simultaneously proclaims that drunk people have zero capacity to make sexual decisions.

This means that when two people get “trashed” and have sex they are both victims and both perpetrators, whether the drunk sex was punctuated with jeers or cheers. In fact, the following theorem is completely permissible under such laws:

A and B are extremely drunk.

A insists on sex.

A has sex with B.

B is a rapist.

Now, that looks pretty outrageous, but if we add some gender to the equation (say, Amber and Brian), it feels more normal, because society apparently expects men to police drunken sexual encounters.

Consider this example of sexual assault from Columbia University’s 2018 Gender-Based Misconduct Policy: “Pat and Dana met at a party. They spent the entire party getting to know each other and dancing. Dana had four shots of tequila and four beers over the course of the evening. At one point, Dana went to the bathroom and Pat noticed that Dana stumbled when walking back into the room. Dana’s friend told Pat that Dana had been vomiting. [Dana and Pat later had sex]. When Dana woke up in the morning, Dana asked Pat what happened that evening. Pat told Dana that they had sex and that Dana had asked to have sex.”

Of course, we might believe that Pat is lying and Dana did not initiate or even agree to sex. But that is not the university’s point. Even assuming that Dana was the sexual initiator, Pat is guilty because Dana “was not able to give consent” because of “her alcohol use.”

The question is whether there is a way for the law to punish those who set out to prey on highly drunk people without opening the door to the widespread policing of “drunk-drunk sex,” as one expert called it.

I believe there is. One possibility is to require strong intent on the part of the defendant by making it a crime to “purposefully” or “intentionally” have sex with a person because they are too intoxicated to resist. This will cover the predator who “watches and waits” but exclude drunken liaisons where each party honestly but mistakenly believed the other was sober enough to consent.

However, as it stands, New York law puts the burden on defendants to argue that they believed the person was sufficiently sober. In California, the defendant who honestly believed their tipsy date was sober will be convicted if the jury determines the belief was unreasonable.

To be sure, sexual misconduct is a pressing social problem, and there are undoubtedly cases where defendants engaged in horrific intentional violence and got off with a “slap on the wrist.” The trend in the #MeToo era is to extend criminal liability to a lot of sex — drunk sex, sex without a “yes,” sex with a work subordinate — in the hopes of getting at the heinous actors like Jeffrey Epstein, Harvey Weinstein and Bill Cosby who might otherwise be immune to prosecution.

But underenforcement is only a small part of the story. Sex offense conviction rates, like all conviction rates, are high, and our country has the most draconian sex offense-sentencing regime in the western world. The burden of broadened sex regulation will likely fall on the “usual suspects,” the marginalized men of color who formed the bulk of the policed segment of society.

Lawmakers will undoubtedly respond that New York prosecutors are fully equipped to separate the watch-and-wait predators from mere participants in drunk-drunk sex. But I have doubts. Our prisons overflow with people who ran afoul of overbroad laws intended to “close loopholes” and err on the side of covering too much. Time and again, we have had abiding faith that scrupulous, nonracist police and prosecutors will apply their discretion judiciously to get at the “real” bad guys and not just those in technical violation of the law.

But this all-American tendency to criminalize it all and let prosecutors sort it out has given the United States the ignoble distinction of the most punitive nation on earth.

Aya Gruber

University of Colorado Law School

Aya Gruber teaches and writes in the areas of criminal law and procedure, critical theory, feminism, and comparative/international law. Her scholarship focuses primarily on feminist efforts to strengthen criminal law responses to crimes against women. Her widely taught and frequently cited articles combine insights from practicing as a public defender with extensive research to articulate a feminist critique of punitive and authoritarian laws on violence against women. Her forthcoming book The Feminist War On Crime (U.C. Press 2019), tells the story how feminists, in their quest to secure women's protection from domestic violence and rape, became soldiers in the war on crime and contributors to mass incarceration, and it sketches a path forward for young women, activists, and lawmakers to oppose violence against women without reinforcing the American prison state.


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